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Nomination of Diane S. Sykes to be United States Circuit Judge for the Seventh Circuit

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Date:
Location: Washington DC

CONGRESSIONAL RECORD
SENATE

NOMINATION OF DIANE S. SYKES TO BE UNITED STATES CIRCUIT JUDGE FOR THE SEVENTH CIRCUIT

Mr. DURBIN. Mr. President, I ask unanimous consent that the order for the quorum call be dispensed with.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. DURBIN. Mr. President, in a short period of time, we are going to consider the nomination of Diane S. Sykes to be U.S. Circuit Judge for the Seventh Circuit.

I take this opportunity on the floor of the Senate to express specifically why I will vote against this nomination.

This is my home circuit, the Seventh Circuit, which includes Illinois, Wisconsin, and Indiana, so I believe I have a special responsibility to bring extra scrutiny to this nomination. I acknowledge that Judge Sykes has the support of her home State Senators, and I do not take that support lightly. Senators FEINGOLD and KOHL have worked hard to establish a bipartisan nominating commission in Wisconsin, both for district and circuit court nominations, and I know they have a special obligation to support the nominee who is the product of that process.

I was initially inclined to defer to my Wisconsin colleagues and support the nomination, but after taking a close look at Justice Sykes' background and many of her answers to my questions, I now regret to say I have serious doubts about her fitness for a lifetime appointment to the bench.

Let me be specific. First, let me address Justice Sykes track record regarding the criminally accused. As a member of the Wisconsin Supreme Court, Justice Sykes has not always treated criminal defendants fairly. We expect those who are guilty of crimes to be treated fairly and firmly. We understand the presumption of innocence and we understand that those who have committed terrible crimes must pay a price.

Listen to what Justice Sykes has said about her own judicial temperament. When she ran for reelection to the supreme court in Wisconsin in the year 2000, the Milwaukee Journal Sentinel said the following about Justice Sykes:

In her five years on the felony bench, Sykes developed a reputation as one of the heaviest sentencing judges in Milwaukee County in recent memory.

Then the Wisconsin State Journal, Justice Sykes admitted:

I have a reputation as a hanging judge, that's true.

I ask my colleagues, do these statements sound like the judicious statements of a person seeking a lifetime appointment to a position where she will be asked repeatedly by those who are presumed innocent to be treated fairly?

During her 2000 campaign for the Wisconsin Supreme Court, Justice Sykes ran radio ads stating that she was such a tough sentencer that defense lawyers tried to avoid her court. She also told a reporter that in light of her tough sentences, a wing of the Wisconsin maximum security prison was informally named after her.

Do these sound like temperate statements by a person who will be asked to honor the presumption of innocence and treat all persons in her court fairly?

Let me mention a specific case which troubles me greatly in which Justice Sykes anticriminal defendant bias reared its ugly head. In the case of State v. Carlson, the Wisconsin Supreme Court ruled 6 to 1 to overturn a conviction and permit a new trial-not to exonerate a defendant but to permanent a new trial-because one of the jurors in this criminal case did not speak or understand English. Justice Sykes was the lone dissenting vote. The juror in this case, whose native language was Lao, received a questionnaire which asked if he could understand the English language well enough to serve on the jury. The juror checked the box "no." He did not understand English well enough to serve on a jury. Under Wisconsin law, the clerk was required at that point to strike the juror from the jury pool. The trial judge, nevertheless, allowed that juror who did not understand the English language to remain on the jury and the defendant was convicted.

Justice Sykes, seeking a lifetime appointment to the second highest Federal court in the land, was the only member of the Wisconsin Supreme Court to vote to uphold the conviction, and concluded this was a harmless error, that a juror could sit in judgment in a criminal trial incapable of understanding the language being spoken in the courtroom. She was the only Wisconsin Supreme Court justice to conclude that such a juror was no obstacle to justice.

Would any one of us in the Senate or any of us following this debate want our fate decided by a juror who could not even understand the words spoken in our defense?

In another case in which she was the trial judge, State v. Fritz, Judge Sykes denied the defendant's ineffective assistance of counsel claim when the defendant's own attorney advised him to lie on the witness stand. Judge Sykes was unanimously reversed. The court of appeals wrote the overwhelming weight of authority is to the contrary; indeed, the sixth amendment of the Constitution is one such authority.

Let me speak to another concern about Justice Sykes. I have great concern about her candor. I believe she made misleading statements to the Senate about a 1993 case in which she was the trial court judge. The case involved the prosecution of two abortion clinic protesters who shut down a Milwaukee clinic by welding their legs to the front of a car parked at the clinic entrance. It took blowtorches and firefighters to remove them.

These defendants had a long history of anti-abortion activity. One had been arrested 80 times in abortion protests; another, 20 times. The defendants had injunctions against them for their protests. As the Milwaukee Journal Sentinel reported just this week, they had companion cases in front of Judge Sykes for other anti-abortion crimes they had committed. One of the defendants had appeared before her six times in one of those cases. They were leaders, well known in Milwaukee's anti-abortion community, at a time when that city was one of the Nation's hubs for that activity.

In a statement submitted to Judge Sykes just days before the sentencing, one of the defendants equated abortion with the Holocaust and slavery. He called abortion clinics "death camps." He called doctors "hired killers." At the sentencing hearing, Judge Sykes praised these defendants. She told them:

I do respect you a great deal for having the courage of your convictions and for the ultimate goals that you sought to achieve by this conduct.

She also said:

As far as your character and history and background, obviously, you possess fine characters. I agree with everything that's been said on that basis. It's a unique case in that respect, that you have otherwise been exemplary citizens. Your motivations were pure.

I asked Justice Sykes in writing why she heaped this praise on the defendants, given the fact they had been arrested 100 times for anti-abortion protests. She responded that she was unaware of their arrest records and that, in any event, there was no evidence in the record of a history of arrests in connection with their protest activity.

I ask unanimous consent to have printed in the RECORD a copy of my written questions to Justice Sykes and her written answers.

There being no objection, the material was ordered to be printed in the RECORD as follows:

9. You were the trial judge in a 1993 case involving two anti-abortion activists, Michael Scott and Jack Lightner, who were convicted of blocking a door to a Milwaukee abortion clinic. The protesters blocked the doorway by binding their legs with welded pipes to the front of a car; they were removed by firefighters with blowtorches. You sentenced the protesters to 60 days in prison with work-release privileges but not before praising their motives. You told the defendants: "I do respect you a great deal for having the courage of your convictions and for the ultimate goals that you sought to achieve by this conduct." You also stated: "As far as your character and history and background, obviously you possess fine characters" and are "exemplary citizens." And you told the defendants, "Your motivations were pure."

A. There are 3 factors that you considered in sentencing: (1) the nature of the offense, (2) the character, history, and background of the defendants, and (3) the interests of the community. With respect to the second factor, you stated that the defendants had "fine characters" and were "exemplary citizens." According to press reports, one of the defendants in this case had been arrested 80 times in abortion protests, and the other had been arrested 20 times. Why did you believe that they possessed "fine characters" and were "exemplary citizens"?
Answer: It is axiomatic under Wisconsin law that defendants have a right to be sentenced upon facts that are of record. McCleary v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512 (1971). The press reports referenced in your question, and the arrests which the question attributes to the press reports, were not facts of record in the case; I was, to the best of my recollection, unaware of these reports. Even if I had been aware of the press reports, it would have been legally improper for me to consider them as they were outside the record in the case.

The case in question was a 1993 misdemeanor disorderly conduct prosecution of two individuals arising out of an abortion clinic protest. Most disorderly conduct prosecutions in Milwaukee County involve acts of domestic violence, bar fights, and the like, and defendants in misdemeanor court are often recidivists with recent criminal records for offenses such as battery, theft, prostitution, drunk driving, and so forth. At sentencing in this case, the prosecutor took the unusual step of standing silent, choosing not to make a sentence recommendation. The defense attorneys and the defendants urged a sentence of community service.

Judges are required under Wisconsin sentencing law to take into account mitigating and aggravating factors regarding the gravity of the offense, the character and background of the offender, and the interests of the community. McCleary, 49 Wis. 2d at 276. At the sentencing in this case, the facts of record about the defendants' backgrounds demonstrated that they were atypical misdemeanor defendants: they were generally law-abiding, educated, employed individuals with stable families, no drug or alcohol problems, and no rehabilitative needs. Although one defendant had a couple of extremely old, minor convictions from the mid-1970s and a more recent disorderly conduct fine, this conduct was so remote and/or inconsequential as to not be relevant to that defendant's current status before the court. While both defendants admitted to active, continued involvement in anti-abortion protests, this was the first criminal conviction of this type for both defendants, and there was no evidence in the record of a history of arrests in connection with their protest activity. As I noted in my sentencing remarks, the offense was not committed out of any sort of self-interest, the defendants were not violent, assaultive or threatening, and they did not resist arrest in the case. Accordingly, none of the usual criminal motivations or sentence aggravating factors was present.

As a result, both defendants stood before the court, based upon the facts of record, as exemplary citizens with fine characters, which I was required to note as a mitigating factor separate and apart from the seriously disruptive and disorderly conduct they engaged in at the abortion clinic. I took substantial note of the seriousness of the offense during my sentencing remarks, including the following: "the community has a right to expect that the public order and that legitimate businesses will not be disrupted and interfered with in a way that rises to criminal dimensions, and this would be true even where the people who are engaging in this kind of conduct are exercising their free speech rights and free assembly rights and are in pursuit of goals that are not in and of themselves illegal." And further: "The community obviously . . . has a strong interest in deterring this type of conduct both by you and by others." And further: "What especially concerns me about this case is . . . your willingness and expressed intention to go beyond mere peaceful picketing to clinic blockades and other types of more dramatic methods to stop abortions from taking place, and these methods over time have the potential to cause the community even more serious harm, and to the extent that it can, my sentence has to protect the community at least for an interim period from these kind of tactics."

The options for sentencing in the case included community service, a fine, probation-or up to 90 days in jail. Based upon a balance of the mitigating and aggravating factors, I sentenced the defendants to 60 days in jail, which represented two-thirds of the potential maximum jail sentence for this crime.

B. Please explain what you mean when you told the defendants that you had a great deal of respect for "the ultimate goals you sought to achieve by this conduct."
Answer: The evidence in the case established that the goal the defendants sought to achieve by their protest was reduction of the number of abortions in our community. As I noted in my sentencing remarks: "I think that people on both sides of the abortion issue would probably agree with you that reducing the number of abortions in this country is a desirable goal." It was that ultimate goal that I respected.

C. The Milwaukee Journal Sentinel wrote that you gave the defendants in this case "unusual leeway to argue that the social value of their protest outweighed their violation of the law." However, during your campaign for the Wisconsin Supreme Court, you stated that you were "a firm believer in personal responsibility and individual accountability, and I'm well known that that." Why, in the case involving abortion protestors, did you give "unusual leeway" to the defendants?
Answer: There was nothing "unusual" about my handling of the case, as later admitted by The Milwaukee Journal. The newspaper properly corrected the record in a retraction dated April 8, 1993, in which the editors noted that applicable law and a well-accepted jury instruction allowed the jury to take into consideration any social value or contribution to the public interest of the defendants' conduct in determining whether it constituted disorderly conduct. I have attached a copy of that retraction. The jury instruction is based upon Wisconsin case law involving disorderly conduct prosecutions in the context of political protests. See WI Jury Instructions-Criminal, 1900, n.4. The abortion protester case, therefore, was unusual only in the sense that there are not very many disorderly conduct prosecutions arising out of political protests. My handling of the case did not, therefore, represent "unusual leeway" to the defendants in this context.

Mr. DURBIN. Mr. President, while it is true that there was no mention of the 100 arrests in the record of the case, this fact was well known because the Milwaukee Journal ran a story about this the day the defendants were convicted.

As to her claim there was no evidence in the record of the defendant's arrest history, that is just wrong. I reviewed the record of the case and it tells a totally different story than what Justice Sykes told the Senate. There are at least four different references in the record to the defendant's arrest history.

For example, the defendant's sentencing statement said:

I have been in jail before for similar activities to the one in question before you today.

Another example, a statement by the assistant district attorney at the sentencing hearing. The prosecutor said:

Here there is no evidence that these defendants have made any effort to conform their conduct to the requirements of law. Instead, both have been charged since this case has been pending with additional criminal violations.

The prosecutor noted that:

[defendant Michael] Skott has also engaged in conduct which has precipitated his arrest and subsequent criminal hearing.

Now, when I asked Justice Sykes in her follow-up written questions to explain the discrepancies between her earlier statements and the actual record in court, she dissembled. She said her definition of "history of arrests" did not include arrests that stem from civil violations nor arrests that occurred during the pendency of the case.

These distinctions by Justice Sykes are completely artificial. An arrest is an arrest. But rather than admit she made a mistake in her initial answer, she persisted in her contradictory and confusing portrayal of the case.

I ask unanimous consent to have printed in the RECORD a copy of my follow-up written questions to Justice Sykes and her written answers.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

ADDITIONAL QUESTIONS OF SENATOR RICHARD J. DURBIN TO JUSTICE DIANE SYKES, NOMINEE FOR THE SEVENTH CIRCUIT COURT OF APPEALS-APRIL 5, 2004

1. You were the presiding judge in a 1993 abortion case involving the conviction of two anti-abortion activists, Michael Skott and Jack Lightner, who were convicted of disorderly conduct for cementing their legs to a car in order to block the door to a Milwaukee abortion clinic.
In a previous question I posed to you, I asked why you called the defendants convicted in this case "fine characters" and "exemplary citizens" at their February 9, 1993 sentencing in light of the fact that one defendant had been arrested 80 times in abortion protests and the other 20 times. Although a January 22, 1993 Milwaukee Journal article about the defendants' conviction reported that Mr. Skott had been arrested 80 times in abortion protests and his co-defendant Jack Lightner had been arrested 20 times, you have stated that you were unaware of the press reports. You also stated that, in any event, "there was no evidence in the record of a history of arrests in connection with their protest activity."

However, a sentencing statement filed with the Court on February 4, 1993 by one of the defendants, Michael Skott, indicates otherwise. Mr. Skott wrote: "Now it is your job as en elected representative of this county to sentence me, Judge Skyes. I have been in jail before for similar activities to the one in question before you today." At the sentencing hearing, held on February 9, 1993, you stated: "I have reviewed carefully the sentencing statement by Mr. Skott."

Additionally, the Assistant District Attorney stated at the sentencing hearing: "Here there is no evidence that these defendants have made any effort to conform their conduct to the requirements of law. Instead, both have been charged since this case has been pending with additional criminal violations." The prosecutor also stated that "Mr. Skott has also engaged in conduct which has precipitated his arrest and subsequent criminal charging under the same-purview of the same issue," and "I understand and I know that he [Skott] has been many times found guilty in municipal court and has on occasion served time in the House of Correction for his failure to pay fines on commitments."

A. How do you reconcile your statement that "there was no evidence in the record of a history of arrests in connection with their protest activity" with Mr. Skott's statement that "I have been in jail before for similar activities to the one in question before you today"?
See below.

B. How do you reconcile your statement that "there was no evidence in the record of a history of arrests in connection with their protest activity" with the Assistant District Attorney's statement that "Here there is no evidence that these defendants have made any effort to conform their conduct to the requirements of law. Instead, both have been charged since this case has been pending with additional criminal violations"?
See below.

C. How do you reconcile your statement that "there was no evidence in the record of a history of arrests in connection with their protest activity" with the Assistant District Attorney's statement that "Mr. Skott has also engaged in conduct which has precipitated his arrest and subsequent criminal charging under the same-purview of the same issue"?
See below.

D. How do you reconcile your statement that "there was no evidence in the record of a history of arrests in connection with their protest activity" with the Assistant District Attorney's statement that "I understand and I know that he [Skott] has been many times found guilty in municipal court and has on occasion served time in the House of Correction for his failure to pay fines on commitments"?

ANSWER
In misdemeanor sentencing hearings in Milwaukee County Circuit Court during this time period, the prosecutor would typically advise the court of a defendant's prior criminal history as a part of the State's sentencing argument and recommendation. Unlike today, there were no computers on the bench and judges relied upon the prosecutor to present evidence of a defendant's prior criminal record at sentencing. Newspaper articles are outside the record and therefore not a proper source of sentencing information. A prior criminal record is an aggravating factor for sentencing purposes, and the lack of a prior criminal record is generally considered to be a mitigating factor. As I indicated in my earlier responses, the prosecutor in this case took the unusual step of standing silent at sentencing, making no record of the defendants' history in this regard and making no sentencing recommendation on behalf of the State.

After the defense attorneys made their sentencing arguments, the prosecutor belatedly requested an opportunity to address the court, which was granted. She stated, "I can inform the court I have no knowledge of Mr. Skott having any prior criminal conviction. I may be incorrect. I understand and know that he has been many times found guilty in municipal court and has on occasion served time in the House of Correction for his failure to pay fines on commitments. However, I am not aware of any criminal convictions. I see he's shaking his head no, so that's a correct statement." The prosecutor then noted that the other defendant, Mr. Lightner, had been convicted of two offenses nearly twenty years before (which, as I indicated in my earlier responses, was too remote and insignificant to the conduct before the court to have much bearing upon sentencing), and had more recently been fined for disorderly conduct (circumstances unspecified.) The prosecutor did not mention any history of municipal citations for protest activity on the part of Mr. Lightner. In his written sentencing statement Mr. Skott indicated only very generally that he had been in jail for his protest activities; as indicated above, he confirmed that the case before the court constituted his first criminal conviction.

I concluded from this very generalized record information that Mr. Skott's prior protest activity had generated only municipal citations rather than criminal arrests and charges. Municipal court in Milwaukee handles only local ordinance matters-traffic tickets and citations for ordinance violations punishable by civil forfeiture-not state crimes. Municipal violations are non-criminal and do not ordinarily involve arrests. Rather, they usually involve the issuance of a ticket or citation, which requires the defendant's appearance in municipal court or payment of a forfeiture in lieu of appearing in court. Occasionally, when a municipal forfeiture is imposed and remains unpaid, the defaulting defendant may be ordered to serve a few days in jail on a "commitment" for nonpayment of the forfeiture. The matter remains civil in nature. Accordingly, having been found guilty in municipal court and having served time in jail on municipal "commitments" does not equate in our system to having a history of arrests or criminal convictions. As I have previously noted, the arrest histories mentioned in the newspaper article were not part of the sentencing record before the court.

The prosecutor in this case also made a generalized statement about a new charge that apparently had been issued against the defendants for protest-related conduct that occurred after the case then before the court had been charged. I did not construe this as a constituting a history of arrests, although the record reflects that I certainly took it into consideration for sentencing purposes, together with the information about the municipal court matters and the other relevant facts in the record. In my sentencing remarks I noted that the defendants "obviously have a history of this kind of behavior . . . and I need to take that into consideration." I also stated that "rehabilitation in the conventional sense in this case is unlikely to occur. I suppose it is possible that you would learn a lesson from this case and not continue in these activities if you view the trial as I do, and that is as a rejection by the community of these kinds of tactics." I concluded that "[b]ased on the record, however, and based on what I've heard of your intentions, I don't have a great deal of confidence that you will take that message to heart, and my sentence has to reflect that fact." As I indicated in my earlier responses, I imposed a sentence of 60 days in jail, two-thirds of the available maximum. In light of the record evidence regarding the seriousness of the offense, the defendants' character and backgrounds, and the interests of the community, this sentence was neither too harsh nor unduly lenient.

The trial and sentencing hearing in this case took place more than 11 years ago. My responses to these and your earlier questions are based primarily on my review of the pertinent parts of the case file, most notably the transcript of the sentencing hearing, a copy of which is enclosed. I have a generalized independent recollection of this case, but have relied on the enclosed transcript for the details, and have attempted to place those details in the context of the law and general sentencing practices in Wisconsin.

2. In his sentencing statement, Mr. Skott equated abortion with the Holocaust and slavery, and he called abortion clinics "death camps" where "a hired killer contracts out to end what has been labeled a problem." At the sentencing hearing, you told Mr. Skott and his co-defendant that "obviously you possess fine characters," "you have otherwise been exemplary citizens," "your motivations were pure," and "I do respect you a great deal for having the courage of your convictions and for the ultimate goals that you sought to achieve by this conduct." Can you understand why some people would view your favorable comments about the defendants as a validation of their beliefs?

ANSWER
I do not believe that my sentencing remarks, when read in their entirety and not out of context, could be considered a "validation" of the defendants' beliefs or rhetoric. My more favorable remarks about the defendants' "motivations," "courage of conviction" and "character" were not directed at the validity of their beliefs, but, rather, represented the legally-required evaluation of the defendants' character and motivations to determine whether any of the usual aggravating criminal motivations or background factors were present in the case. Also, my favorable comment about the goal the defendants sought to achieve was a reference to their underlying goal of reducing the number of abortions, as is clear from the following statement from my sentencing remarks: "I think that people on both sides of the abortion issue would probably agree with you that reducing the number of abortions in this country is a desirable goal." My sentencing remarks also reflect extensive consideration of the seriousness of the offense and criticism of the defendants' conduct and tactics, as I have previously discussed. My sentencing remarks were fair and even-handed, and the 60-day jail sentence I imposed, at two-thirds of the maximum, could not be characterized as unduly lenient or a "validation" of the defendants' beliefs.

Mr. DURBIN. In light of Justice Sykes' statements in the case, I have serious concerns about whether she recognizes the fundamental right of privacy and about her ability to rule fairly in cases involving constitutionally protected rights to privacy.

But let me be clear. My opposition to this nominee is not because I am pro-choice on the abortion record and Justice Sykes may be pro-life. I and my Democratic colleagues have voted for over 95 percent of President Bush's nominees-191 judges as of today. It is likely that the vast majority of them were pro-life on the abortion issue.

Deborah Cook, now a judge on the U.S. Court of Appeals for the Sixth Circuit, was endorsed by the Ohio Right to Life organization. Lavenski Smith, a judge on the Eighth Circuit, sought to make all abortions in Arkansas illegal except to save the life of the mother. Michael Fisher, now on the Third Circuit, advocated that abortion is wrong and should be illegal even in cases of rape and incest. I voted for all three of these pro-life nominees.

I voted for James Browning, a judge we recently confirmed to the district court in New Mexico. Judge Browning had spoken at pro-life rallies and called the pro-choice position "the tyranny of the majority over the minority." He called on people who are pro-choice to "make the choice of life, not holocaust." Despite his passionate feelings, I voted to confirm him.

Why? Because unlike Justice Sykes, these judicial nominees-all of them I have mentioned, who do not share my views on this important issue-were honest and candid and open in their dealings with the committee. I think that is the bottom line. Even if I disagree with the nominee's point of view, I expect them to be honest and candid.

I have appointed in the district courts of Illinois men and women who do not share my views on critical issues. But I do not ask that of them. I do not come to any nominee with a litmus test, nor do I come to Justice Sykes with such a test.

I am also disappointed that Justice Sykes chose not to answer some basic questions I asked about some fundamental constitutional rights. Instead, she tried to hide behind the Wisconsin Code of Judicial Conduct.

Justice Sykes' refusal to answer my questions is in stark contrast to an Ohio Supreme Court justice whom the Senate confirmed with my vote last year: Sixth Circuit nominee Deborah Cook.

I asked both nominees the exact same questions: whether they thought Roe v. Wade and Miranda v. Arizona-two landmark Supreme Court cases-were consistent with strict constructionism. I have asked this question over and over. Justice Cook answered my question with painful but direct honesty. This is what Justice Cook said:

If strict constructionism means that rights do not exist unless explicitly mentioned in the Constitution, then the cases you mention likely would not be consistent with that label.

That is a candid answer. I am certain it is an answer Justice Cook knew I did not agree with personally, but she was honest, and I respected her for it.

When Senator DeWine of Ohio came to me and said, "I believe she is a good and fair person," I said: "I will give her the benefit of the doubt. I will support her nomination because of her candor and honesty."

Now, contrast that with the answer I received from Justice Sykes to the exact same question. She said:

This question requests a critique of certain United States Supreme Court cases that I am or will be required to interpret and apply as a judge in individual cases before the court. The Wisconsin Code of Judicial Conduct prohibits judges from engaging in extra-judicial commentary with respect to particular cases or legal issues that would appear to commit the judge in advance or suggest a promise or commitment of a certain course of conduct in office regarding particular cases or legal issues.

This is a major-league evasion. If judicial nominees could each hide behind the local code of ethics in their State and say they could not even tell us where they stand on landmark Supreme Court decisions, such as Miranda and Roe v. Wade, and whether these decisions are consistent with a certain judicial philosophy, then the Senate Judiciary Committee should turn out its lights and the Senate should walk away from any role in advising and consenting to judicial nominees. But that is not what I swore to uphold when I took the oath of office to serve in the Senate.

What Justice Sykes sent to me in response to that question was evasion with a capital "E," and I do not believe the Senate should accept such responses.

Justice Sykes' refusal to answer my questions was not only evasive but erroneous. I contacted Steven Lubet, an expert on judicial ethics and a law professor at Northwestern University Law School in Chicago. I showed him Justice Sykes' responses to my questions, and he wrote a letter stating that the Wisconsin Code of Judicial Conduct does not prevent Justice Sykes from answering my questions.

So this is my conclusion, having considered these three elements: first, that Justice Sykes has taken pride in the fact that she is known as a hanging judge and is extreme in her sentencing procedures; second, that she was not open and honest with me in the sentencing of a case which involved people who were well known to be serial, at least, arrestees, if not criminals, because of their conduct; and, third, that she would not answer the most basic questions about her judicial philosophy, which I think goes to the core of our responsibility in the Senate Judiciary Committee.

Time and again, Justice Sykes has demonstrated she does not possess the qualities necessary to inspire the confidence we should expect from a Federal judge. She has been nominated to serve for the rest of her natural life on the second highest court in America. I do not believe she can provide the good judgment, candor, or fairmindedness that we must demand of each person seeking such an important appointment. I will vote "no" on this nomination.

Mr. President, I yield the floor.

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